Opinion
# 2021-040-001 Motion No. M-96100
02-02-2021
DERRICK HILL v. THE STATE OF NEW YORK
Derrick Hill, Pro Se LETITIA JAMES Attorney General of the State of New York By: Christina Calabrese, Esq., AAG
Synopsis
Pro se Movant's Motion to file a Claim late pursuant to CCA § 10(6) denied.
Case information
| UID: | 2021-040-001 |
| Claimant(s): | DERRICK HILL |
| Claimant short name: | HILL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-96100 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Derrick Hill, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Christina Calabrese, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | February 2, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the application of pro se Movant, Derrick Hill, to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is denied.
Court of Claims Act § 10(6) contains two preliminary requirements that must be satisfied in order for the Court to review the six enumerated factors set forth in the statute. One of the requirements is that "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application" (Court of Claims Act § 10[6]). The failure to satisfy this prerequisite is a basis, in and of itself, for denial of the Motion (Davis v State of New York, 28 AD2d 609 [3d Dept 1967]; LaBreche v State of New York, UID No. 2019-040-135 [Ct Cl, McCarthy, J., Nov. 26, 2019]; Nestel v State of New York, Claim No. None, Motion No. M-71607 [Ct Cl, Mignano, J., May 31, 2006]; Harrell v State of New York, UID No. 2003-005-511 [Ct Cl, Corbett, J., April 3, 2003]). Here, Movant has submitted a Motion for Permission to File a Late Claim, with a statement and an affidavit of service, however, he has not submitted a proposed Claim. On this basis, the Motion for Permission to File a Late Claim is denied.
As stated above, Movant has only submitted a statement requesting the permission of the Court to file a late Claim pursuant to Court of Claims Act § 10(6) without providing any additional information. However, he included in his statement that he is referring to Claim No. 134594. That Claim was recently the subject of a motion to dismiss made by the State, pursuant to CPLR 3211(a)(2), for lack of subject matter jurisdiction. By Decision and Order dated December 1, 2020, this Court granted Defendant's motion and Claim No. 134594 was dismissed (Hill v State of New York, UID No. 2020-040-041 [Ct Cl, McCarthy, J., Dec. 1, 2020]. The Court assumes that is the claim Movant is now seeking permission to file late. The allegation in that Claim is that Movant is an inmate at Franklin Correctional Facility and that, beginning on August 27, 2018, he started working in the facility mess hall. He asserts that he is not being paid the correct wage for his work. He filed a grievance regarding the matter. He received a response from the Inmate Grievance Review Committee denying his grievance, finding that his pay is appropriate pursuant to the guidelines set forth in the Department of Corrections and Community Supervision (hereinafter, "DOCCS") Food Service Operations Manual (see Hill v State of New York, supra).
Assuming, arguendo, Movant had submitted a proposed Claim based upon the facts set forth in Claim No. 134594, the Court would have denied the Motion based upon the lack of appearance of merit. In determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
Perhaps the most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
As the Court stated in Hill v State of New York (supra):
In order for Claimant to recover damages on his Claim, the Court would have to examine and reverse the administrative actions of DOCCS regarding the level of pay Claimant was entitled to receive for his work in the mess hall. The jurisdiction of the Court of Claims is limited to awarding damages in tort or contract and does not extend to the review of discretionary determinations of State agencies (Lantry v State of New York, UID 2001-001-027 [Ct Cl, Read, J., June 28, 2001]). "If the award of a money judgment must be preceded by overturning and annulling a determination of an administrative agency then the primary relief sought is not money damages" (Ouziel v State of New York, 174 Misc 2d 900, 905 [Ct Cl 1997]). Claimant should have challenged the determination of DOCCS by way of a proceeding pursuant to CPLR Article 78 in Supreme Court. It is well settled that this Court lacks subject matter jurisdiction of a Claim where the primary relief sought is obtainable in an Article 78 proceeding, regardless of how the Claim is characterized (Guy v State of New York, 18 AD3d 936, 937 [3d Dept 2005]).
Based upon the foregoing, Defendant's Motion to dismiss Claim No. 134594 on the basis that the Court lacks subject matter jurisdiction over the Claim was granted and the Claim was dismissed.
Therefore, since the Court lacks jurisdiction over the matter, the proposed Claim lacks the appearance of merit.
February 2, 2021
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Movant's Motion to file a late claim pursuant to Section 10(6) of the Court of Claims Act: Papers Numbered Motion Statement 1 Affirmation in Opposition 2